Analytic dissection
Encyclopedia
Analytic dissection is a concept in U.S. copyright law analysis of computer software
. Analytic dissection is a tool for determining whether a work accused of copyright infringement
is substantially similar to a copyright-protected work.
In analytic dissection, unprotectable elements of a work are dissected out and discarded before making any comparison of the two works. These unprotectable components include idea (as contrasted with expression), scènes à faire
(conventional elements typical of a genre), material in the public domain
, and functional aspects. As the Ninth Circuit explained in the 1988 Data East case, that such elements are common to two works does not create substantial similarity
. Rather, infringing similarity must be based on the similarity of what remains after the unprotectable elements are dissected out.
Subsequently, in Computer Associates International, Inc. v. Altai, Inc., the Second Circuit applied this conceptual tool in determining whether two computer programs were substantially similar, under the name of the "Abstraction-Filtration-Comparison" test
. As the Tenth Circuit concisely explained this test in its Bando opinion:
This legal test has generally "been applied in subsequent [copyright law] decisions, to the extent that it is recognised in the USA, and elsewhere, as the accepted standard."
and subsequent decisions including Parker v. Flook
. A similar type of analysis of obviousness or inventive level has been used under the name of the "point of novelty
" test, which is suggested by the use of a Jepson claim.
Computer software
Computer software, or just software, is a collection of computer programs and related data that provide the instructions for telling a computer what to do and how to do it....
. Analytic dissection is a tool for determining whether a work accused of copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
is substantially similar to a copyright-protected work.
In analytic dissection, unprotectable elements of a work are dissected out and discarded before making any comparison of the two works. These unprotectable components include idea (as contrasted with expression), scènes à faire
Scenes à faire
Scène à faire is a scene in a book or film which is almost obligatory for a genre of its type. In the U.S...
(conventional elements typical of a genre), material in the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
, and functional aspects. As the Ninth Circuit explained in the 1988 Data East case, that such elements are common to two works does not create substantial similarity
Substantial similarity
Substantial similarity is the standard developed and used by United States courts to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if infringement...
. Rather, infringing similarity must be based on the similarity of what remains after the unprotectable elements are dissected out.
Subsequently, in Computer Associates International, Inc. v. Altai, Inc., the Second Circuit applied this conceptual tool in determining whether two computer programs were substantially similar, under the name of the "Abstraction-Filtration-Comparison" test
Abstraction-Filtration-Comparison test
The Abstraction-Filtration-Comparison test is a method of identifying substantial similarity for the purposes of applying copyright law. In particular, the AFC test is used to determine whether non-literal elements of a computer program have been copied...
. As the Tenth Circuit concisely explained this test in its Bando opinion:
[A] court should dissect the program according to its varying levels of generality as provided in the abstractions test. Second, poised with this framework, the court should examine each level of abstraction in order to filter out those elements of the program that are unprotectable. Filtration should eliminate from comparison the unprotectable elements of ideas, processes, facts, public domain information, merger material, scènes à faire material, and other unprotectable elements suggested by the particular facts of the program under examination. Third, the court should then compare the remaining protectable elements with the allegedly infringing program to determine whether the defendants have misappropriated substantial elements of the plaintiff's program.
This legal test has generally "been applied in subsequent [copyright law] decisions, to the extent that it is recognised in the USA, and elsewhere, as the accepted standard."
Parallels in patent law
A conceptually similar approach has been applied at times in US, UK, and European patent law. In Neilson v. Harford, the Exchequer adopted a method of analyzing the patent-eligibility of inventions based on a natural principle or phenomenon of nature, in which the principle is treated as if part of the prior art and the remainder of the invention (i.e., the mechanical implementation of the principle) is evaluated for patentability under the usual tests (novelty, etc.). The US Supreme Court followed this approach in O’Reilly v. MorseO’Reilly v. Morse
O'Reilly v. Morse, also known as The Telegraph Patent Case, is an 1853 decision of the United States Supreme Court that has been highly influential in the development of the law of patent-eligibility in regard to claimed inventions in the field of computer-software related art...
and subsequent decisions including Parker v. Flook
Parker v. Flook
Parker v. Flook, was a 1978 United States Supreme Court decision that ruled that an invention that departs from the prior art only in its use of a mathematical algorithm is patent-eligible only if the implementation is novel and unobvious. The algorithm itself must be considered as if it were part...
. A similar type of analysis of obviousness or inventive level has been used under the name of the "point of novelty
Point of novelty
Point of novelty is a term used in patent law to distinguish those elements or limitations in a patent claim that are conventional or known from those elements or limitations that are not conventional or known...
" test, which is suggested by the use of a Jepson claim.